Bhayana v Bhayana

Committal for contempt requires proof, to the criminal standard, that the respondent deliberately breached a clear and properly served order, and that compliance was within the respondent’s power. The order must identify precisely what is required or prohibited and any relevant time limit. Terms cannot be implied into an ambiguous injunction.

Procedural requirements in contempt proceedings protect natural justice and a fair hearing. The court may waive defects where doing so is just and the alleged contemnor suffers no injustice or prejudice. Where a child has been wrongfully retained, imprisonment may be suspended to provide a final opportunity for compliance, while preserving punishment, deterrence and rehabilitation as relevant sentencing purposes.

The applicant sought the committal of the respondent for failing to comply with orders requiring the return of their child, who had been taken to India and retained there. Earlier proceedings had determined that the child remained habitually resident in England and Wales and ordered the respondent to return, or cause the return of, the child.

The respondent did not attend or obtain representation at the committal hearing. The court considered whether it was just to proceed in her absence, whether the orders and committal documents had been properly served, and whether the alleged breaches were proved.

1. Proceeding in absence. Applying the checklist in Sanchez v Oboz and Oboz [2015] EWHC 235 Fam, the court was satisfied that the respondent had received sufficient notice and that an adjournment was unlikely to secure her attendance. It was just to determine the application in her absence.
2. Applicable principles. Committal is essentially criminal in nature. The burden remained on the applicant, the presumption of innocence applied under Article 6(2) ECHR, and the criminal standard of proof was required: the judge had to be sure of the breach and of the respondent’s ability to comply. These principles were consistent with Benham v United Kingdom (1996) 22 EHRR 293 and Ravnsborg v Sweden (1994), Series A no. 283-B.
3. The alleged contempt lay in disobedience to the orders. Each order had to be clear on its face as to what was required and when. It was impermissible to imply terms into an injunction. The respondent had to know with precision what she was required to do or abstain from doing.
4. The procedural requirements under FPR 37 and the associated practice direction served natural justice. They required clear identification and evidence of the alleged contempt, together with a proper opportunity to participate and obtain representation. Defects could be waived where it was just to do so and no injustice or prejudice resulted.
5. The orders of 31 May, 1 July and 4 July 2019 were properly served, sufficiently clear, and accompanied by penal notices. The applicant proved so that the court was sure that the respondent had been able to return the child but had wilfully failed to do so. She was found in contempt in respect of all three orders.
6. Six months’ imprisonment was imposed for each contempt, to run concurrently, but suspended until 30 December 2019 on condition that the child be returned and the relevant persons notified. The sequestration application was adjourned. The freezing injunction was continued and extended to relevant sale proceeds and financial institutions.